Madhya Pradesh High Court
Praveen Kumar Datta vs Vishnu Goyal on 7 March, 2019
THE HIGH COURT OF MADHYA PRADESH
1 M.Cr.C.No.17732/2018
Praveen Kumar Datta Vs. Vishnu Goyal
Gwalior Bench Dated; 07.03.2019
Shri Gaurav Mishra and Shri Aditya Sharma, learned counsel for
the petitioner.
Shri Bhagwan Raj Pandey, learned Public Prosecutor for the
respondent/State.
With consent heard finally.
The present petition has been preferred by the petitioner under Section 482 of the Code of Criminal Procedure, 1973 against the order dated 19-12-2015 passed by the JMFC, Vidisha in case No.3563/2015 whereby cognizance has been taken which according to petitioner is not in accordance with law.
It is submitted by learned counsel for the petitioner that in a case of private complaint preferred under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'), mandatory compliance to record the statement of complainant is required to be made and in the present case the respondent/complainant although filed the complaint under Section 138 of the Act against the present petitioner but did not depose on oath under Section 200 of Cr.P.C., therefore, the said omission is barred by the dictum of this Court in the case of Banshilal Vs. Abdul Munnar, 2010 (1) MPLJ 644.
Learned counsel for the respondent opposed the prayer made by THE HIGH COURT OF MADHYA PRADESH 2 M.Cr.C.No.17732/2018 the petitioner and referred the judgment of Hon'ble Apex Court in the case of Indian Bank Association and others Vs. Union of India and others, (2014) 5 SCC 590 and submits that the Hon'ble Apex Court has discussed the instant issue along with other aspect in detail that if complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order then cognizance can be taken. Thus, prayed for dismissal of petition.
Heard learned counsel for the parties and perused the documents appended with the petition.
The Hon'ble Apex Court in the case of Indian Bank Association and others (supra) has laid down certain directions in para 23. The said directions are as under:
"23. Many of the directions given by the various High Courts, in our view, are worthy of emulation by the Criminal Courts all over the country dealing with cases under Section 138 of the Negotiable Instruments Act, for which the following directions are being given:-
23.1. The Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinize the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons.
THE HIGH COURT OF MADHYA PRADESH 3 M.Cr.C.No.17732/2018 23.2. The MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice to the accused. For notice of appearance, a short date be fixed. If the summons is received back un-served, immediate follow up action be taken.
23.3. The court may indicate in the summon that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, Court may pass appropriate orders at the earliest.
23.4. The court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 Cr.P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for re- calling a witness for cross- examination.
23.5. The Court concerned must ensure that examination-in-chief, cross-examination and re- examination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for cross-
THE HIGH COURT OF MADHYA PRADESH 4 M.Cr.C.No.17732/2018 examination as and when there is direction to this effect by the Court."
From perusal of directions as contained in para 23.1, it is clear that statement of complainant is not required for cognizance. If complaint is accompanied by the affidavit and the affidavit and documents, if any, are found to be in order then cognizance can be taken and summon can be issued.
In the cumulative analysis, no ingredients exist to interfere into the case and to invoke extra ordinary jurisdiction. Scope of Section 482 of Cr.P.C. is very limited and as per the mandate of Hon'ble Apex Court, it is to be invoked sparingly in exceptional circumstances. Thus, petition fails and is hereby dismissed. Petitioner has to contest his case in accordance with law before the trial Court. No case for interference is made out.
Petition stands dismissed.
(Anand Pathak)
Anil* Judge
Digitally signed by
ANIL KUMAR
CHAURASIYA
Date: 2019.03.09
07:04:57 +05'30'